Monday, July 19, 2010

Colonial Notaries

I’m reading a book about colonial Arkansas called, appropriately, Colonial Arkansas 1686-1804. It is by Morris S. Arnold.  If you click the link you will find out that Mr. Arnold is a federal judge in the 8th Circuit.  But the link won’t tell you about this book, just that he has a keen interest in history.  Someone should update the wikipedia entry to tell people about this book.

I’m really enjoying reading it, maybe because it is written by a lawyer.  He puts together a great narrative but always tells the reader what is fact and what is speculation.  And he has a good sense of humor.

It is filling in some gaps in my knowledge of colonial French history. It also has some useful information on French (and Spanish) legal process.  Last week when I was writing about finding Jacques/Jean Baptiste LeBeau I wrote about how my dad had found the marriage contract for his wife’s second marriage.  I said that St. Louis was a big enough town to have a real notary who kept these records. Now that I think about it some more, and look at some copies of marriage contracts, St. Louis didn’t always have a notary.  Often the post commander acted in lieu of the notary. But it did have a good record system so we can still look at all these contracts.

I didn’t describe the French notary process in that post, but Judge Arnold does it very well in this book and I thought I’d share it with my readers.

To an American common lawyer, the notary is not a member of the legal profession, not even a paralegal.  But in seventeenth and eighteenth century France he enjoyed a much more elevated status, as indeed he still does in that country.  Originally an official of the medieval European ecclesiastical courts, the notary developed into a full-blown, noncontentious secular legal professional in France. In England, partly because the canon and secular laws were not on speaking terms, “the notarial system never took deep root.” For one thing, an important aspect of the notary’s duties, his authority to authenticate documents, was of little use to the English.  The whole notion of a state-sanctioned authenticator of private acts was entirely foreign to English common law; whereas in France we see notaries making or passing contracts, the common law left that to the parties.  The state was very much in the background in England and was called upon only to enforce obligations that arose by force of nature.

… the eighteenth century French notary’s duties [included] the drafting of documents, conveyancing, and the giving of practical legal advice.

Judge Arnold later describes a typical marriage contract under French Law.  That made my pull out my marriagae contracts and look at them.  And as long as I have them out I thought I should share one with you, my readers.

I’m using, as an example, a contract for a second marriage.  This contract between Marguerite DesRosiers, the widow of Antoine Barada, and Joseph Sorins (sometimes spelled Saurins) was made in 1782 in St. Louis, Spanish “Illinois”.   The entire midwest was at one time called the Illinois country.  After it was partitioned, the portion in Spanish Louisiana was still called Illinois.

Keep in mind that although Marguerite DesRosiers without a doubt spoke French, and may have spoken very little Spanish, St. Louis and all of Louisiana was under Spanish rule at the time.  So all contracts have this odd blend of Spanish and French which, when translated into English, is apparent mostly in the names. The names are almost always mispelled and use the Spanish rendering.  Hence Marguerite becomes Margarita.

The contract begins by naming the parties.  Notice how the person with the most descriptive words is Francois Cruzat, the Lieutenant Governor.  Normally the contract would be made before a professional notary but often the commander of the post would be the notary if there wasn’t a “real” notary available.

In the town of St. Louis of Illinois, the thirteenth day of the month of April in the year one thousand, seven hundred eighty-two, before me, Don Francois Cruzat, Lieutenant Colonel of the Infantry, Captain of the Regiment stationed in Louisiana, commander in chief and Lieutenant Governor of the Western part of Illinois and the amended districts andin the presence of the attending witnesses, Antoine Cutian and Joseph Bernes, personally appeared Joseph Sorins, residing in the said town of St. Louis stipulating for himself and in his name party of the first part

And Margarita De Rosier, widow of Antoine Barada, deceased, stipulating for herself and in her name, party of the other part,

Then the contract goes on to name the people who are “standing up” with the bride and groom.

Which parties, with the advice and counsel of the relatives and friends here present and herein after named to wit:  On the part of Joseph Sorins, Joseph Marie and Renato Cruyan, residing in the aforesaid town,

And on the part of Margarita DesRosier, Baptiste Becquet and Gabriel Dodier, here present all relative and friends.

Marguerite DesRosiers and her deceased husband, Antoine Barada, had many children and one of them, Louis Barada, married Marie Becquet, the daughter of Baptiste Becquet. Gabriel Dodier was Baptiste Becquet’s brother-in-law, the uncle of Marie Becquet.   I don’t know who the men standing up for Joseph Sorins were.  But the whole point is that the two people are doing this as part of a community who have advised them on this matter.  

Once the parties and witnesses are named, the contractual provisions begin. 

Which parties and witnesses have made and agreed between themselves to the matrimonial convention as follows to wit:

As Judge Arnold writes:

The provisions typically found in marriage contracts executed in accordance with eighteenth-century Parisian notarial practice are well known.  The first and invariable undertaking by the future spouses was a promise to celebrate their marriage in church, and the parties would then choose the regime that would govern their property during the marriage.  Next would come a declaration that the ante-nuptual debts of the parties were to remain their separate obligations; this was foll0wed by a disclosure of the parties’ assets, a requirement of the validity of the provision regarding debts.  The dowry brought to the marriage by the wife was then recited; and delineating preciput, the right of the spouse to specific property in the event of a dissolution of the community, frequently followed. Finally came the donation clause, usually a reciprocal grant of all or part of the predeceasing spouse’s estate. 

This contract is, of course, under Spanish Law since Illinois in Louisiana was under Spanish Rule. So they reference the law of Castille and the “Recompilation of the Indies” which was a set of statutes that governed the American colonies.  Marguerite Barada had existing children and this contract references the terms of the contract she had with her first husband, Antoine Barada (which I don’t think we’ve ever found).  The blank is, I believe, in the original (although maybe it was just illegible, I don’t recall).  Under this contract, unlike Judge Arnold’s usual contracts, the debts of the spouses are not kept separate but are to be paid out of the community.  Perhaps because of this, there is no listing of the assets of the parties or of any dowry. 

First: The said Joseph Sorins and the said Margarita Desrosier, have promised and do promise to take each other with the counsel of their relatives and friends, in the name and according to the matrimonial laws and to have their marriage celebrated before our mother the Catholic and Apostolic and Roman Church as soon as possible or as soon as one of the parties shall require it of the other.

2nd: The future couple shall be one and in common as regards all the goods they actually possess, those they may acquire in future and the said future husband declares that if he should die first, all their goods shall belong to the future wife so that none of these nearest relatives can claim any thing nor establish any rights thereto. This donation thus made, provided there be no children born of the said marriage for if there be any the said community shall be regulated according to the law of Castille and the Recompilation of the Indies, and the goods which the said future wife brings into the community shall be divided in equal parts between the children born of her first marriage and those which may be born of this present marriage according to the terms of the contract executed between her and her first husband, deceased, on the second day of October in the year One thousand Seven Hundred and Fifty. 

3d.: The future couple wish that all the goods accruing to their community which they this day establish shall belong to the _____ if there be no children; and in case of children shall be divided according to the terms aforementioned.

4th: The said future couple have covenanted that all the debt contracted either by one or by the other party before the celebration of this present marriage shall be paid out of the goods of their actual community.

For thus has been covenanted and agreed between the parties, promising, accepting, and those who do not know how to write have made their customary marks before me and the aforesaid attending witnesses who have signed with me,  Lieutenant Governor, the same day, month and year as above written.

A copy of the contract was kept with the official records of St. Louis and this one can be found in the Colonial Book 3, item 188 #2063. According to Judge Arnold, if they had been living under French law the contract would have had to have been registered with the superior council in New Orleans to be valid.  I don’t know if it was necessary, under Spanish Law, to send a copy to the Cabildo in New Orleans.