by pursuing them with spirit, seizing, or putting them to death."

Section 7th concerns the Procurador General. The article I. is as follows:

"The Procurador General is an officer appointed to assist the people in all their concerns, to defend them, preserve their rights, and obtain justice on their behalf, and to enforce all other claims which relate to the public interest.

"In consequence thereof, the Procurador General, who is appointed solely for the public good, shall see that the municipal ordinances are strictly observed, and shall endeavor to prevent everything by which the said public interest might suffer.

"For these purposes, he shall apply to the tribunals competent thereto, for the recovery of debts and revenues. due to the treasury of the town of New Orleans, in the capacity of attorney for said town. He shall pursue these causes with the activity and diligence necessary to discharge him from the responsibility he would incur by the slightest omission.

"He shall see that the other 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; and in case said sureties should cease to be good, he shall demand that they be renewed conformably to law.

"He shall be present at, and shall interpose in the division of lands, and in other public matters, to the end that nothing unsuitable or injurious shall occur."

It must be admitted that this whole section is replete with a feeling of liberality and a regard for the interests. of the people, which is supposed to appertain only to a republican government.

DUTIES AND JURISDICTION OF PUBLIC OFFICERS. 13

The section 10, which treats of the jailor and the prisons, breathes not that spirit of ferocity, which is generally believed to be akin to the subject, and characteristic of that age, as well as the attribute of the presumed tyranny of Spanish legislation and officials; but, on the contrary, it seems to have been framed under the mild influence of modern philanthropy. The provision which prohibits jailors from exacting any fee from the poor, and from receiving any gratuity, either in money or goods, is worthy of commendation. It may not be inappropriate to quote the whole section.

Art. 1. "The jailor 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 inducted into office, and to take an oath to discharge faithfully the duties of the said office, to guard the prisoners watchfully, and to observe the laws and ordinances established in this respect, under the penalties therein declared.

Art. 2. "The said jailor 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, as a warranty that no prisoner detained for debt shall be released without an order from the judge competent thereto.

Art. 3. "The jailor shall keep a book, in which he shall inscribe the names of all the prisoners, that of the judge by whose order they have been arrested, the cause for which they are detained, and the names of those who may have arrested them. He shall reside in the prison intrusted to his care, and, for each considerable fault committed by him, he shall pay sixty dollars, applicable one half to the royal chamber, and the other to the informer.

Art. 4. "It is the duty of the jailor to keep the prison

clean and healthy, to supply it with water for the use of the prisoners, to visit them in the evening, to prevent them from gaming or disputing, to treat them well, and to avoid insulting or offending them.

Art. 5. "It is likewise the duty of the jailor to take care that the female prisoners are separate from the men; that they be kept in their respective apartments, and that they be not worse treated than their offence deserves, or than is prescribed by the judges.

Art. 6. "With regard to his fees, the said jailor shall confine himself strictly to those which are established; he shall take none from the poor, under a penalty of the value of the same. He shall not, without incurring the same penalty, receive any gratuity, either in money or in 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."

Persons of noble birth, the military, the municipal and other civil officers, lawyers, physicians, women, and certain other individuals, were exempted from imprisonment for debt.

The section on criminal trials has some remarkable features, among which the art. 14, which says: "The accused, being convicted of the crime, on its being fully established on trial by sufficient proof, or by some other proof in conjunction with his own confession, 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 certain 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 pro

O'REILLY'S LEGISLATION.

15

vided by law; but some other punishment shall be inflicted as directed by the judge, with due consideration of the circumstances which may appear on the trial. This state of things requires the greatest eircumspection, as it must always be remembered, that it is better to let a criminal escape than to punish the innocent."

This provision concerning condemnation on the testimony of one witness, whatever may be said as to the propriety of its policy, is certainly more humane than the law by which we are now governed, and which may send a man to the scaffold on the bare testimony of another. It will also be observed that the well known axiom that "it is better that guilt should go unpunished, than that innocence should suffer unjust punishment," is not confined to the common law of England. It may, moreover, not be amiss here-to remark, in a parenthesis, that the boasted privileges of English liberty existed in some parts of Spain, although destroyed since, long before they were dreamed of in that noble land from which we have borrowed so much of our judicial and political organization.*

The whole chapter concerning appeals is characterized by the desire of bringing lawsuits to a speedy termination-a thing not to be expected, according to public opinion, from Spanish Legislation.

It must be confessed, however, that some of the penalties inflicted, savored of the peculiar temperament of the age and of the exaggerated devotion to the church and the throne which marked the Spanish character at the time; for instance, art. 1 of section v. on punishments, decreed that: "he who shall revile Our Saviour, or his mother the Holy Virgin Mary, shall have his tongue cut out, and his property shall be confiscated, applicable one

See art. Navarre, in the Encyclopædia Britannica, vol. xv., p. 748.

half to the public treasury, and the other half to the informer."

Art. 2d. said: "He, who forgetting the respect and loyalty which every subject owes to his king, shall have the insolence to vilify his royal person, or that of the queen, of the hereditary prince, or of the infantes (princes of the blood) or of 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 the royal treasury, if he have legitimate children; but should he have none, he shall forfeit the whole, applicable two thirds to the public treasury, and the other third to the accuser."

Art. 3. "The authors of any insurrection against the king or the state, or those who, under pretence of defending their liberty and rights, shall be concerned in it, or take up arms therein, shall be punished with death and the confiscation of their property. The same punishments shall also be inflicted on all those who may be convicted of high treason."

The Art. 4. contains a remarkable feature. A plebeian, using opprobrious language to the detriment of any one, was condemned to pay a fine of 1200 maravedis; but should a nobleman have committed the same offence, the penalty for him was 2000 maravedis. This distinction seems to have originated from the impression, that such an offence ought to be more severely punished in one of gentle than of base blood, on account of its being more heinous in one who, on account of his rank, ought to have been more correct in his deportment.

The following articles show at least that the new government was imbued with puritanical severity, and was disposed to check by extreme punishment all infractions against morality.

Art 6. said: "The married woman convicted of adul